1

The Honorable Joan N. Ericksen, United States District Judge for the

District of Minnesota. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 05-1969

___________

United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the District

* of Minnesota. 

Arash Allaei, *

* [UNPUBLISHED] 

Defendant - Appellant. *

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Submitted: March 13, 2006

Filed: March 16, 2006

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Before MURPHY, BOWMAN, and BENTON, Circuit Judges. 

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PER CURIAM. 

Arash Allaei pled guilty to conspiracy to manufacture and cultivate in excess

of 100 marijuana plants, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B). The

district court1

 sentenced him to 24 months imprisonment. Allaei appeals, asserting

that his sentence was imposed without consideration of United States v. Booker, 543

U.S. 220 (2005), and 18 U.S.C. § 3553(a). We affirm. 
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Allaei's plea agreement specified a base offense level of 20, stated that the

government would recommend a 3 level reduction for acceptance of responsibility,

and acknowledged that the court could grant a safety valve reduction. The agreement

declared that the adjusted offense level would be 15 if the safety valve were granted,

corresponding to a guideline range of 18 to 24 months. The presentence report

disagreed with the total offense level of 15, finding that the offense level could not be

less than 17 given the five year statutory minimum under 21 U.S.C. § 841(b)(1)(B).

See U.S.S.G. § 5C1.2(b). 

At sentencing Allaei moved for a downward departure based on aberrant

conduct and unique circumstances which the government opposed. The district court

set a base offense level of 17, gave Allaei the benefit of the safety valve, and

computed the guideline range at 24 to 30 months. The court declined to depart after

finding the factors cited by Allaei not sufficiently extraordinary or atypical and after

considering Allaei's "extraordinary advantages", "family support", and lack of

financial need. It imposed a sentence of 24 months, the bottom of the guideline range.

 

Allaei asserts that the district court failed to recognize that the sentencing

guidelines are not binding after Booker, but adhered strictly to them rather than

considering the § 3553(a) factors and the facts of his case including his educational

status, successful operation of a business, remaining drug free, and cooperation with

authorities. He claims that the court therefore did not comply with the sentencing

procedures set out in United States v. Haack, 403 F.3d 997, 1002 (8th Cir. 2005), and

United States v. Hadash, 408 F.3d 1080, 1083 (8th Cir. 2005). The government

contends that Allaei cannot appeal his sentence since it falls within the sentencing

range foreseen in his plea agreement, see generally United States v. Nguyen, 46 F.3d

781, 783 (8th Cir. 1995), and also argues that the record demonstrates that the district

court understood that the guidelines are advisory and the sentence must be reasonable.
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The district court did not choose to depart based on aberrant conduct and it

found Allaei's circumstances not so extraordinary, particularly considering the

advantages he has had in life. The court stated several reasons for its sentencing

decision, citing United States v. Rogers, 400 F.3d 640 (8th Cir. 2005) (court obliged

to consider the § 3553(a) factors), and recognized that after Booker a sentence must

be reasonable. After reviewing the record, we conclude the district court did not err

or abuse its discretion in sentencing Allaei and that his sentence was not unreasonable.

Accordingly, we affirm the judgment. 

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